2012 (5) TMI 322 - AT - Central Excise

Clandestine removal - manufacture of non-alloy steel ingots. - held that - apart from the photocopies of the notices, there is virtually no evidence indicating or evidencing any clandestine removal by the respondents. The buyers of the final product allegedly cleared by them, as reflected in the invoices have not been approached by the Revenue and examined. Neither there is any statement of transporters. - Decided in favor of assessee.

Summary

Issues:
Allegation of clandestine removal based on photocopies of sale invoices without corroborative evidence.

Analysis:
The case involves an appeal by the Revenue against the order passed by the Commissioner (Appeals) regarding the confirmation of demand of duty and imposition of penalty based on allegations of clandestine removal of goods. The Revenue relied on photocopies of sale invoices provided by an informer as evidence. The Commissioner (Appeals) set aside the impugned order, emphasizing the lack of corroborative evidence and the unreliability of photocopies as the sole basis for alleging clandestine removal.

The Commissioner (Appeals) highlighted the appellants' denial of clandestine removal, pointing out the absence of corroboration for the alleged removal based on photocopies. Reference was made to a case law emphasizing the distinction between facsimile copies and xerox copies, stating that xerox copies are susceptible to tampering. The Commissioner (Appeals) stressed the importance of proving that the copies are exact replicas of the original documents before relying on them for legal matters.

Moreover, it was noted that the consignees were not questioned about receiving goods under the disputed invoices, and the statements of the appellants' representatives did not substantiate the department's allegations. The report by the Government Examiner of Questioned Documents did not confirm the authenticity of the copies. The burden of proving clandestine manufacture and removal rested on the Revenue, requiring tangible evidence, which was found lacking in this case.

The Commissioner (Appeals) rightly observed the absence of substantial evidence supporting the allegations of clandestine removal. The lack of examination of buyers, transporters, and establishment of the manufacture of goods weakened the Revenue's case. The appellate authority emphasized the necessity of positive and tangible evidence to substantiate allegations, rejecting the confirmation of demand based solely on photocopies without additional corroboration.

In conclusion, the Appellate Tribunal upheld the Commissioner (Appeals)' decision, rejecting the Revenue's appeals. The judgment emphasized the importance of tangible evidence and the unreliability of photocopies as the sole basis for allegations of clandestine removal, highlighting the need for corroboration and thorough investigation in such cases.